DePaul Law Review
Volume 17
Issue 1 Fall 1967
Article 2
World Habeas Corpus, Human Rights and World
Community
Luis Kutner
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Luis Kutner, World Habeas Corpus, Human Rights and World Community, 17 DePaul L. Rev. 3 (1967)
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WORLD HABEAS CORPUS, HUMAN RIGHTS AND
WORLD COMMUNITY
LUIS KUTNER*
World Habeas Corpus .
.
. the difference between civilization and tyranny.
Sir Winston Spencer Churchill**
We in this country, in this generation are-by destiny rather than choice-the watchmen on the walls of world freedom.
John F. Kennedy***
World Habeas Corpus is a concrete program whereby the now only morally
binding Universal Declarationof Human Rights would be made, by the voluntary
consent of the nations of the World, a legally binding commitment enforceable
in an International Court of Habeas Corpus which would function through appropriately accessible regional courts.
United States Supreme Court
Justice William J. Brennan, Jr.****
The legal profession of the Republic of China supports the movement of World
Habeas Corpus, which leads toward the acceptance of an international jurisdiction
for individuals in a world society.
Associate Justice Andrew Leet
Chairman
World Conference of Lawyers
Committee for Republic of China
World Habeas Corpus is a most elementary and primary necessity or 'conditio
sine qua non' of the world community that there shall exist no vacuum in the
* MR. KUTNER is a member of the Illinois Bar and the Indiana Bar. He is a former
visiting Associate Professor, Yale Law School; Chairman, World Habeas Corpus Committee, World Peace Through Law Center; Special Counsel to the Attorney General of
Illinois; and, author of numerous law journal articles and several books, including WoRLD
HABEAS CORPUS and I, THE LAWYER. The research assistance of ERNEST KATIN, PH.D.,
is acknowledged.
** Meeting at Claridge's, London, 1950.
*** From President John F. Kennedy's last undelivered address, Dallas, Texas, November 22, 1963.
**** Meeting of American Bar Association on August 7, 1962, in 48 VA. L. REV. 1258
(1962).
t Letter dated January 14, 1967.
DE PAUL LAW REVIEW
[Vol. XVII:3
world in regard to the Habeas Corpus and that therefore the natural law principle of the Habeas Corpus shall be vested with positive effect as soon as possible.
Justice Kotaro Tanaka-International Court of Justice
No man isan island entire of itself,
Every man is a piece of the continent, a part of the main;
If a clod be washed away by the sea, Europe is the less,
As well as if a promontory were,
As well as if a manor of thy friends or of thine own were.
Any man's death diminishes me
Because I am involved with mankind.
And, therefore, never send to know for whom the bell tolls,
It tolls for thee.
John Donne
Each time a man stands up for an ideal, or acts to improve the lot of others,
or strikes out against injustice, he sends forth tiny ripples of hope crossing each
other from a mission of different centers of energy and daring, and those ripples
build a current that can sweep down the mightiest walls of oppressionand resistance.
Senator Robert Kennedytl"t
THE CONCRETE
UTILITY OF WORLD HABEAS CORPUS
VER SINCE the beginning of time, the family of man has sought a
way to live together respecting the sovereignty of each individual. Institutions of various kinds have come into being and dis-
appeared, all failing to eliminate repetitive deprivations and degradations of the human being.
The' geometric increases in population and re-definitions of national
borders and influences have historically proven that the world cannot
sow thorns of hate and brutality and expect to reap the harvest of
peace wheat. Revolutions in economic, political, and military institutions have brought into ever clearer focus that the only definite and
fundamental objective essential to human dignity and freedom from
arbitrary arrest or exile is a competent international rule of law. Collective security can only be buttressed with individual security. Anything short of that goal will again result, as historically demonstrated,
in collective guilt and collective punishment by tribunals of the victorious.
tt Letter dated January 20, 1967.
ttt From the text of speech delivered in South Africa, in New York Times, June 17,
1966, p. 10.
19671
WORLD HABEAS
CORPUS
World Habeas Corpus, a collective, summary remedy to protect and
guarantee individual liberty, follows the line of natural law and the
fundamental tenet that "the state is for man, not man for the state."
A proposed summary remedy processed through world regional International Courts of Habeas Corpus suggests that the inalienable rights
with which men are endowed are the fundamental obligations of a
society formed mainly to secure the definite objectives of preserving
life, liberty, or property; and the power of government merely operates
within an area circumscribed by those objectives or boundaries. World
Habeas Corpus suggests that it is the primary right reserved in each
individual to resist all authority that oversteps those boundary lines.
National states are born out of a life-and-death struggle against
tyranny and oppression, out of the aroused conscience of mankind,
hopefully looking toward the recognition by organized international
communities that there are natural rights of all members of a common
family, as individuals and national groups, to enjoy freedom and
equality.
The concept of the inherent dignity of man, on which the United
Nations Charter, Universal Declaration of Human Rights, the Nuremberg Principles, and the Genocide Convention are based, can be traced
to the Bible which, in recording man's creation "in the image of God,"
invested the human being ex origine with a distinctive status bearing
the divine imprint and, therefore, endowed with inherent dignity.
World Habeas Corpus has been acclaimed as the international
Magna Carta to which hundreds of millions of men, women, and
children will turn for help and guidance. The concrete proposal approaches the problems of human rights, both in depth and on a realistic
level. It destroys the final barrier on the road toward the millennium,
that millennium where human rights and fundamental freedoms are
fully recognized and enforced in the relationship between the individual
and society-under the rule of law.
What is sought to be stressed at this juncture of world history is that
all nations, and those especially obligated under the United Nations
Charter, strive for the effective interpretation of applied guarantees
which safeguard national and individual aspirations. Governmental
measures, essential for national growth, cannot thrive in a climate that
seeks to curtail individual rights. The world conscience, and the cosmoindividual, can no longer accept, as necessary, any invasion of human
dignity; and governments are warned that invasions of individual
DE PAUL LAW REVIEW
[Vol. XVII:3
security or privacy will not be endured with patience. Nations indulging in excesses of individual deprivations are spelled to their doom.
World Habeas Corpus asserts that there is an absolute primacy of
human rights. Harassment, or a personal affront to that primacy, leads
to reprisals no matter how facile a national government is in its boldness to circumvent this primacy. World Habeas Corpus contends that
the primacy of human rights is immutable, inflexible, yielding to no
pressure of convenience, expediency, or the so-called judicial instrument. As an eloquent voice in a world that seems to waver on the stand
for human liberty, it proclaims that no human society can justify any
conduct of apprehending or placing in custody any human being without the benefit of those fundamental privileges which the experience
of the ages has determined essential for the protection of all persons
accused of crime before the tribunals of justice. The regional International Courts of Habeas Corpus give the world the assurance of a
judiciary that is ever mindful of its sacred mission that will not, through
faulty cogitation or misplaced devotion, uphold any doubtful claims of
governmental power and diminution of individual rights. The regional
international courts will abide by the principle uttered long ago by
Chief Justice John Marshall, "that when in doubt of the construction
of the constitution, the courts will favor personal liberty."'
Arriving at its time in world history, implementing the United Nations Charter and the Universal Declaration of Human Rights, World
Habeas Corpus becomes the inevitable remedy to achieve international
emphasis on human rights, concomitant with the erosion of the traditional doctrine about individual human persons being merely the objects of international law. The doctrine has emerged that individuals
also may be subjects of the law of nations and that as such they may
be endowed directly with rights and burdened with obligations under
international law. This doctrinal position is merely formal recognition
of the sociological and psychological fact that the individual is the
ultimate unit of society, national or international, and that both
national political communities and the international organizations,
national law and international law, are but institutions established
and maintained for the benefit of human persons and the satisfaction
of human needs.
The United Nations has long had a double standard on human rights
1 Ex
parte Burford, 7 U.S. (3 Cranch) 448 (1806).
1967]
WORLD HABEAS CORPUS
complaints. Persons under Trusteeship "had the right to petition the
Trusteeship Council, whereas citizens of the administering countries
did not possess that right." This paradox becomes pointed when nonself-governing territories and an independent state, South Africa, are
permitted individual petition. Secretary General Trygve Lie suggested
in 1949 that the Human Rights Commission concern itself with human
rights complaints, whereas Professor Lauterpacht held to be "implied
in the Charter as the very minimum" means of safeguarding human
rights. Myres S. McDougal and Gerhard Bebr have urged that the
Economics and Social Council revere its native rule.2
With the recognition of the relation of human rights and world order, and
the gradual acceptance of the individual as a subject of international law, the
problem of human rights has not been, however, resolved. Two major and tightly
related aspects of the problem-that of formulating the specific content of binding
human rights commitments, and that of devising means for the implementation
and enforcement of such commitments when formulated-remain as formidable
as ever.
Consider the first of these aspects-that of realizing what has been described
as "the treaty approach to human rights." The Universal Declaration of Human
Rights, at the time it was adopted, was explicitly and repeatedly described as a
"common standard of achievement"-as a "declaration of basic principles," "But
not a treaty," "not an international agreement," "not a statement of legal obligations." The Universal Declarationis commonly acknowledged as possessed of great
moral authority, but it has not been possible, since 1948, to achieve agreement on a
Universal Covenant or Convention of Human Rights. To a great extent, of course,
this difficulty is traceable to the existence in our world of, not one, but multiple
and mutually antagonistic systems of international public order. Each system
postulates its own conceptions about the nature of man and of law, and about
the position of man in society. Understandably, each system defines differently
those claims against itself which it is prepared to honor as rights of man.
The drafting history of the Universal Declaration indicates the tremendous
difficulty in obtaining a verbal formulation acceptable to the representatives of
different systems of public order. The deep and deadly conflict between these
systems has certainly helped to insure failure of the efforts to secure approval
of draft human rights covenants. The difficulties have been such that some
observers have begun to question whether the securing of legal commitments on
a global scale remains a valid objective. They point out that the only existing
general human rights Covenant is the European Convention on Human Rights,
23 U.N. GAOR 699 (1948); Trygve Lie, U.N. Doc. ECN 4/165, p. 7; GARDNER,
IN PURsuIT or WoRLD ORDER 243 (1965); LAUTERPACHT, INTERNATIONAL LAW AND
HuMAN RIGHTS, 244 (1950); Carey, The United Nations Double Standard on Human
Rights Complaints: The Developing Paradox, 60 AM. J. INT'L L. 792 (1966); Concepcion, International Law and Human Rights, EQUALITY AND FREEDOM: A CONSTITUTIONAL LAW JOURNAL, Vol. II, nos. 1 & 2, p. 35 (July-Dec. 1964); McDougal & Bebr,
Human Rights in the United Nations, 58 Am. J.INTr'L L. 603, 640 (1964); Bruegel, The
Right to Petition an InternationalAuthority, 2 INT'L & COM. L.Q. 542, 547 (1953).
DE PAUL
LAW REVIEW
[Vol. XVII:3
a convention that is for a region displaying a certain minimum cultural and
ideological unity and consensus. Moreover, though agreed verbal formulas may
be achieved, there would of course remain the further problem of assuring a
reasonable uniformity in the practical interpretation of the same language by
the various parties to a covenant. In the rhetoric of diplomacy, particularly of
parliamentary diplomacy, one may be astonished at the frequency and ease with
which the same words are made to refer simultaneously to things that are utterly
3
and fundamentally different.
The philosophy that pervades World Habeas Corpus is that there
can be a world summary remedy, prosecuted by world attorney generals, that will stand against any winds of tyranny that blow, as a
haven of refuge for those who might otherwise suffer because they are
helplessly weak, outnumbered, or because they are nonconforming
victims of prejudice or public excitement. No higher duty, no more
solemn responsibility rests upon this international court than that of
translating into living law and maintaining an impervious shield of "due
process of law" deliberately planned and inscribed for the benefit of
every human being on the face of the globe-whatever his race, creed,
color, or persuasion.
World Habeas Corpus, by treaty-statute, places specific limitations
on national governments (without impairing sovereignty), guaranteeing to people their inalienable rights-among them, freedom of speech,
press, religion, and assembly; the right to trial by jury; the right to
be secure against unreasonable searches and seizures; the right not to
be compelled to be a witness against oneself; the right not to be deprived of life, liberty, or property without due process of law; the right
to speedy and public trial; the right to confront witnesses against oneself; the right to counsel; and the right to be secured against excessive
bail and cruel and unusual punishments.
The objectives and strategies of the World Habeas Corpus process
will continue to be, for all time, relevant in the development of international law. There will be ever emerging principles of obligations,
coupled with the capability of responding to what are the demands of
emerging civic orders that can consolidate into the harmonizing goals
of public order. To those who participate in the widening of the process
of World Habeas Corpus, as a world social development, the ultimate
goals and attainments will demonstrate that individual security can be
implemented with a minimum of national coercion. In the bending of
precedent, the regional world tribunals will have access to ever expand3 Concepcion, supra note 2, at 35-37.
1967]
WORLD HABEAS CORPUS
ing legal skills and political enlightenments, which will expand national
interests. Heretofore, politically rivalled programs will be transmuted
with all feasible expeditiousness into economically competitive or co4
operative relations of trade and investment.
Associate Supreme Court Justice William J. Brennan, Jr. cogently
refers to the law as a living process responsive to changing needs:
[T]his new jurisprudence constitutes . . . a recognition of human beings, as
the most distinctive and most important feature of the universe which confronts
our senses, and of the function of law as the historic means of guaranteeing that
pre-eminence . . . . In a scientific age it asks, in effect, what is the nature of
man, and what is the nature of the universe with which he is confronted ....
Why is a human being important; what gives him dignity; what limits his freedom
to do whatever he likes; what are his essential needs; whence comes his sense
of injustice?
This echoes what Mr. Justice Holmes said for the Court 45 years ago:
The law has grown, and even if historical mistakes have contributed to its
growth, it has tended in the direction of rules consistent with human nature.
Brown v. United States, 256 U.S. 335, 343.
Perhaps some of you may detect, as I think I do, the philosophy of St. Thomas
Aquinas in the New Jurisprudence. Call it a resurgence if you will of concepts
of natural law-but no matter. St. Thomas, you will remember, was in complete
agreement with the Greek tradition, both in its Aristotelian and Platonic modes,
that law must be concerned with seeing things whole, that it is but part of the
whole human situation and draws its validity from its position in the entire
scheme of things. It is folly to think that law, any more than religion or education, should serve only its own symmetry rather than ends defined by other
disciplines.
Of course, this shift of law away from emphasis upon abstract rules to emphasis
upon justice has profound significance for judicial decision making. It has not
only brought on cases requiring reappraisal of particular specifics in the light of
the "fundamental rights" standard; it has also resulted in the Court's holding
that a provision of the Bill of Rights, which is enforced against the states under
the Fourteenth Amendment, is enforced according to the same standards as it
is enforced against federal encroachment.5
Paul C. Szasz, the European oriented scientist-lawyer, makes a
valiant contribution to World Peace Through Law:
Lawyers, in considering the possibility of preserving peace through law, naturally
often focus their thinking on international judicial organs.
In a sense, the creation of effective judicial organs to settle international disputes is simpler than the establishment of legislative or executive ones. Even
states that are most reluctant to restrict their nominally uncontrolled right to
4 Lasswell, Relevance of International Law to the Development Process, in PROCEED-
15 (April 28-30, 1966).
5 Brennan, Extension of Bill of Rights to the States, 44 J. URBAN L. 11, 22-23 (1966).
INGS OF THE AMERICAN SociETY OF INTERNATIONAL LAW
DE PAUL LAW REVIEW
[Vol. XVII: 3
determine their international obligations or to participate in the creation of
any international force greater than their own, may be willing to yield to some
extent to judicial organs whose impact is necessarily restricted to the particular
cases under consideration.
The readiness to seek a court decision in a particular case unfortunately cannot always be extrapolated into a willingness to agree a priori to accept such
decisions in all cases. Thus, at present the submission of a particular dispute
almost always requires the ad hoc consent of all states concerned, including that
of the putative aggressor-i.e., the potential defendant.
The continuing reluctance of states to submit even to international judicial
control can in part be explained by ignorance of the general existence and the
particular rules of international law. It is understandable that in the absence of
such knowledge a state, in submitting to an international tribunal either in
general or -with respect to a particular case, would not feel confident that it can
predict the resolution of disputes-and law requires precisely this sort of predictability.
Another difficulty is the well-known awkwardness and undue length of international judicial proceedings, which at least in part stem from a desire to emphasize the dignity and the diplomatic background of such international proceedings. In addition, the techniques used in these litigations do not reflect the reforms
that have taken place in national court practices.
Finally, international judges are not generally trusted. It is felt, with some
reason, that in spite of efforts to weaken their national and ideological ties and
loyalties, these still predominate over their sense of obligation to the international system whose temporary servants they are. Correctives, as the balancing
of one potentially biased judge by another, do not serve to instill the measure of
confidence that would make submission to international courts easy. 6
At this juncture, the comments of Arthur J. Goldberg are relevant:
Law in the United Nations, as in our own society, is often developed on a
case-by-case basis. We should analyze each action of U. N. political organs with
due regard for the facts of each case and be careful of hasty generalizations. In
particular, we should not be dissuaded from taking an obviously prudent and
lawful measure today for fear that it may lead us to take an obviously imprudent and unlawful measure tomorrow.
As we deal with these and other great questions in the United Nations, we
might do well to recall the statement of our Supreme Court in Weems v. United
States, 217 U.S. 349, 373 (1910):
Legislation, both statutory and constitutional, is enacted, it is true, from an
experience of evils, but its general language should not, therefore, be necessarily confined to the form that evil had theretofore taken. Time works changes,
brings into existence new conditions and purposes. Therefore a principle to be
6 Szasz, How to Develop World Peace Through Law, 52 A.B.A.J. 851, 855-56 (1966).
See, e.g., Tammes, Decision of International Organs as a Source of International Law, 94
REcuEmL DES COURS, AcADF.wY OF
INTERNATIONAL
LAW; Szasz, International Law in
National Courts, in PROCEEDINGS oF THIRD SUMMER CONFERENCE ON INTERNATIONAL
LAW 162-63 (Cornell Law School, 1960); Schwelb, The Influence of The Universal
Declaration of Human Rights on International and National Law, in PROCEEDINGS OF
THE AMiERICAN SOCIETY OF INTERNATIONAL LAW 217 (1959).
1967]
WORLD HABEAS
CORPUS
vital must be capable of wider application than the mischief which gave it birth.
This is peculiarly true of constitutions. They are not ephemeral enactments,
designed to meet passing occasions. They are, to use the words of Chief Justice
Marshall, "designed to approach immortality as nearly as human institutions
can approach it." The future is their care and provision for events of good and
bad tendencies of which no prophecy can be made. In the application of a
constitution, therefore, our contemplation cannot be only of what has been
but of what may be. Under any other rule a constitution would indeed be as
easy of application as it would be deficient in efficacy and power. Its general
principles would have little value and be converted by precedent into impotent
and lifeless formulas. Rights declared in words might be lost in reality.
Those of us who work at the United Nations know only too well that we are
dealing with an imperfect legal order. International law today is not yet fully
effective across the whole spectrum of relations among the world's powers.
We know of the shortcomings of international law, but we keep working to
remedy them. We keep working in the same way that we worked to build a legal
order in our own society. We move gradually from self-help and the private
redressing of grievances to the settlement of disputes through negotiations, mediation, arbitration and adjudication.
We persevere in this effort because we must. We persevere because there is
no other way to assure the survival of mankind in this nuclear age. We persevereand we have confidence that eventually human beings will find a rational alternative to violence as a means of settling their differences and ordering their affairs.
That this alternative will be found in the law is something I deeply believe.
It is, for me, an article of faith, as it is for lawyers. One might even call it the
7
lawyer's creed.
World Habeas Corpus is an idea about which it may be said that its
time has come.' Injustices, such as slavery, tyranny, and other forms
of inhumanity, may prevail for many generations, and proposals may
be advanced to deal with these problems. But the ears of mankind
historically are slow to responck to new ideas. The ideas seem to be
like seeds which are disseminated on rocky soil. A few seeds manage to
germinate deep in some crevices. Gradually, the roots are spread and
suddenly the time becomes ripe as public opinion demands the elimination of injustice. Thus, for a century after the Emancipation Proclamation, the American Negro was subject to the indignities of segregation
Goldberg, Law and the United Nations, 52 A.B.A.J. 813, 815-16 (1966).
8 Brennan, International Due Process and the Law, Law and Layman Conference,
American Bar Association, Aug. 7, 1962, in 108 CONG. REc. A6774 (daily ed. Sept. 13,
1962) ; Kefauver, International Due Process and the Law, 108 CONG. REc. A6774 (daily
ed. Sept. 13, 1962); Kutner, World Habeas Corpus: The Legal Ultimate for the Unity
of Mankind, 40 NOTRE DAME LAw. 570 (1965); Kutner, World Habeas Corpus: A Legal
Ligament for Political Diversity, Washington World Conference on World Peace Through
Law (1965); Comment, World Habeas Corpus, 7 IND. L.Q. Rav. 1173 (1963); KUTNER,
WORLD HABEAS CORPUS (1962); Kutner, World Habeas Corpus for International Man:
A Credo for InternationalDue Process of Law, 36 U. DET. L.J. 235 (1959).
7
DE PAUL LAW REVIEW
[Vol. XVII:3
and the exploitation of discrimination until, in the late 1950's and
1960's, a movement emerged which evoked overwhelming support for
the adoption of legislation and the means for eliminating these injustices.
Similarly, World Habeas Corpus was advanced for the first time in
1931 as a means for asserting the rights of individuals who have been
subjected to arbitrary action by any authority anywhere in the world.
However, it is only since World War II, with mankind's growing concern for the international protection of human rights, that the idea has
received full attention. World Habeas Corpus has received the support
of many of the Chief Justices or Presidents of the Supreme Courts of
signatory states to the United Nations Charter. Jurists from the AfroAsian and Latin American states, as well as from the Anglo-American
and Western European legal systems, have heartily responded to the
idea. Statesmen throughout the world have endorsed the proposal. This
support reflects the demands of people everywhere to secure the dignity
of the individual.
This paper will seek to present an analysis of the development of the
concept of World Habeas Corpus and international due process of law
as related to contemporary trends toward national interdependence.
THE FERTILE SOIL OF WORLD HABEAS CORPUS
The principle of a rule of law that guides the actions of men and
governmental authorities was recognized in the ancient world. The
basis of Judaism lay in adherence to the law, and some commentators
have interpreted the dialogues of Plato9 as encompassing a plea for
the rule of law. Aristotle's theory of justice, as expressed in the
Nicomachian Ethics, is premised on notions of equal treatment which
can only be achieved through law. Roman law, which ultimately came
to regulate human behavior over an area encompasing most of the
ancient world, provided universal protection to the individual from
arbitrary governmental action and contributed to the development of
contemporary civil law codes.
The Judaeo-Christian tradition contributed to the idea of individual
9 Hall, Plato's Legal Philosophy, 31 IND. L.J. 171 (1956) ; Maguire, Plato's Theory of
Natural Law, 10 YALE CLASSICAL STUDIES 151 (1947); WILD, PLATO'S MODERN ENFxiiIEs
AND THE THEORY OF NATURAL LAW (1953). But a different interpretation is presented by
Kelsen, Plato and the Doctrine of Natural Law, 14 VAND. L. REV. 23 (1960).
1967]
WORLD HABEAS CORPUS
dignity with the principle that all men stem from a common source in
Adam, so that no race nor social class could claim superior rights.
Related to this was the notion that every person must be respected
because he was created in the image of God and endowed with a personal soul.' Though throughout the middle ages the individual was
degraded by barbaric cruelties and the notion of churchmen that man's
soul was depraved by original sin, the aspects of Christianity stressing
personal dignity managed to penetrate among the people. These principles later formed the natural basis for the "Rights of Man." Another
principle which promoted the rights of the person was the notion of
the separation of church and state and the belief that man was subjected to a higher law than that of the state. Thus, Caesar was distinguished from God.
Christian ideas were combined with the classical tradition as the
Stoic notions of a higher or natural law came to be asserted by
Medieval and Renaissance philosophers. The notion prevailed that
"unjust laws" were not to be obeyed. Both the ruler and the ruled
were bound by an immutable higher law.
The feudal system also contributed to the development of individual
rights. The feudal relationship was based on contract with obligations
imposed upon both the lord and the servant. 1 The feudal system also
lead to the formation of parliaments as the king established the practice of calling on the knights for advice and money. Out of this, the
principle evolved that the king could not rule without the consent of
the nobles. The Magna Carta was promulgated at one such assembly
in England in 1215. The barons sought this Great Charter for wholly
selfish purposes in seeking to retain feudal privileges made unnecessary
by the changing economic situation. The thirty-ninth clause, from
which the Writ of Habeas Corpus stems, asserted that "no free man
shall be taken, or imprisoned, or disseised, or outlawed, or exiled, or in
any way destroyed, nor will we go against him or send against him,
except by lawful judgment of his peers or by the laws of the land."
But "free men" meant only the barons and their sort and was not
intended for ordinary men.12
The Magna Carta was left unsigned because King John and most of
10
MULLER, FEEDox iN THE WESTERN WORLD
11 Id. at 67.
12
Id. at 70.
55 (1964).
DE PAUL LAW REVIEW
[Vol. XVII:3
the barons were illiterate. Pope Innocent III, at John's request, decreed
the document null and void. But Englishmen disregarded the Pope's
decree and the Great Document in the next two hundred years. During
this period (1415-1628), the kings of England were obliged to reissue
such charters some thirty times. The Magna Carta at least affirmed
the basic feudal principle of contract and limited power, since the king
had to obey the law and could not make it to suit himself. In detaining
an individual, the king had to follow certain legal procedures. The
thirty-ninth clause had been adopted because the king had perverted
judicial procedures through bribery."3 However, Englishmen failed to
implement the charter of their liberties, until Sir Edward Coke (15521634) resurrected and misinterpreted it (Petition of Rights 1628) as
a means of resisting King James I, who fancied himself as an absolute
monarch. The privileges claimed by the barons had extended to more
and more of the people, so that almost all Englishmen were "free men"
and the thirty-ninth clause was made out to be a declaration of their
basic rights. When King Charles I (1600-1649) put persons in jail
without stating the nature of their alleged crimes or permitting bail or
bringing them to trial, the members of the House of Commons objected
with their Petition of Rights which stated that these rights were guaranteed to all free men by the Magna Carta and other "laws and statutes
of this realm." The king reluctantly agreed to the Petition. Thus, the
principle of Habeas Corpus became a cornerstone of fundamental
human rights in the Anglo-American world. Hence, considered in historical perspective, the Magna Carta was the seminal impulse toward
the supremacy of the rule of law that has guided the development of
democracy in the English speaking world.
The urban bourgeoisie also contributed to the development of individual freedom. Their technology widened the span of communication
and led to the development of notions of power. The free towns which
retained freedoms in the midst of the feudal system contributed to a
development of a spirit of liberty. 4
As the feudal system broke down, the modern nation-state emerged.' 5
It resulted from the assertion by rulers, of their independence from
Rome and, reflecting the need for the maintenance of law and order,
13 Seymour, The Magna Charta of the Law, 50 A.B.A.J. 762 (1964).
14 Supra note 10, at 78.
15 Supra note 10, at 199.
1967]
WORLD HABEAS CORPUS
was based on linguistic differences. But the emergence of the nationstate, with power centered in kings, gave rise to concern for theories
of sovereignty and such notions as the social contract as formulated
by Thomas Hobbes (1588-1679), John Locke (1632-1704), Christian
Thomasius (1655-1728), and Jean Jacques Rousseau (1712-1778).
Concern developed regarding the rights of men and the relations between the ruler and ruled. With the Age of Enlightenment in the
eighteenth century, a growing intellectual skepticism developed as old
habits of thinking came to be challenged. Speculations emerged as to
the rights of men. Within this context occurred the American and
French Revolutions asserting the rights of the individual. The American Declaration of Independence and the French Declaration of the
Rights of Man asserted principles with regard to human rights which
had universal application.
This Enlightenment spirit was reflected in the writings of Immanuel
Kant. In his PerpetualPeace, written in 1795, he contended that man's
natural tendency is toward peace rather than war and proposed constitutional measures which states must adopt internally, as well as the
establishment of a league of nations in order to assure peace.' 6 Envisioning the individual as a world citizen, Kant declared that "the law
of universal citizenship shall be limited to conditions of universal
hospitality'
17
and asserted that:
Since the narrower or wider community of the peoples of the earth has developed
so far that a violation of rights in one place is felt throughout the world, the
idea of a law of world citizenship is no high-flown or exaggerated notion. It is a
supplement to the unwritten code of the civil and international law, indispensable8
for the maintenance of the public human rights and hence also of perpetual peace.'
Kant's statement anticipates contemporary views regarding the international protection of human rights. But in the nineteenth century, the
protection of individual rights was generally limited to the outlawing
of slavery and later with regard to the protection of the rights of
prisoners of war and persons in occupied territories. There were instances, however, of diplomatic intervention by states, where certain
national or religious groups were arbitrarily denied what may be
regarded as minimum standards of human rights.
"16 THE INFLUENCE OF THE ENLIGHTBNMENT ON THE FRENCH REVOLUTION
1964).
17 KANT, PERPETUAL PEACE
18 Id. at 23.
20
(Beck ed.
1957).
(Church ed.
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[Vol. XVII: 3
While in classical thought the focus was upon the community and
man's participation therein, in modern times as the state became too
large for direct participation, men became concerned with freedom
from the claims of the state. Legitimation of government in the modern
era lay in a solicitude for so-called fundamental prerogatives, the
' 19
defense, or what may be regarded as "Prerogatives of Privacy,'
which was identified with the rights of the individual. During the nineteenth century, as the ideals of the American and French Revolutions
spread throughout the globe with the broadening of suffrage, political
participation came to be linked with these fundamental prerogatives.
Political rights-the right to vote and the right to seek and hold elective office-were conceived as means for the garnering of individual
freedom. Though there are differing definitions of democracy, one such
definition encompasses participation in government and the right of
privacy. While political rights may be instrumental in the achieving
of individual rights, the latter may also be the means for achieving the
former. Thus, political participation cannot be divorced from other
20
rights .
With the spread of democracy and the concern for individual rights,
the Writ of Habeas Corpus became institutionalized in most legal
systems. This has been true of the Civil Law systems and of the
Latin American states which have adopted the analogous remedy of
Amparo .21
Western civilization, including the ideals of the American and French
Revolutions, spread throughout the world through the development of
communication, the expansion of commerce, and European imperialism.
The values expressed in the Declarationof Independence and the Declaration of the Rights of Man came to be shared universally. Thus,
the protection of individual rights came to be a matter of universal
concern. Within this context the need has arisen for the protection of
individual rights everywhere, and the Writ of World Habeas Corpus
emerges as the bulwark and shield for the protection of freedom.
19 BAYLEY, PUBLic LIBERTIES IN THE NEW STATES 8-10 (1964), referring to de Jouvenal,
What is Democracy? in Congress for Cultural Freedom, Representative Government and
Public Liberties in the New States, Discussion Papers (Island of Rhodes, 1958).
20 Id.
21 United Nations, Seminar on Amparo, Habeas Corpus and Other Similar Remedies
(Mexico, August 1961); United Nations Commission on Human Rights, SrtDY OF THE
RIGHTS OF EVERYONE TO BE FREE FRom ARBITRARY ARREST, DETENTION AND EXILE (1961).
WORLD HABEAS
CORPUS
THE GLOBAL DIVISIONS OF WORLD HABEAS CORPUS
World Habeas Corpus is the universalization of the writ which originated with the Magna Carta. The concept was first enunciated in 1931
in reaction to the rise of the Nazi dictatorship with its atavistic repudiation of all notions of human rights. It is based on the premise that man
is the subject and ultimate beneficiary of domestic and international
law and should have the liberty, integrity, and freedom of his person
guarded and guaranteed by regionally accessible international courts
created by a constitutionally ratified treaty-statute which would not
impair the sovereignty of the signatory states. To root such international protection in the diverse patterns of law, the world would be
divided into nine circuits (or arenas) which, aside from practical considerations of geographical proximity, would be delineated to correspond approximately to the main divisions in legal traditions, cultures,
religions, and histories as suggested by Northrop. 2 The following circuits would be established:
1. The Communist-Orient Circuit-Communist China, North Vietnam, Outer Mongolia, and North Korea.
2. The U.S.S.R.-Eastern Europe Circuit-the Soviet Union and
the Communist states of eastern Europe, including Yugoslavia.
3. The Western Europe Circuit-the non-Communist states of
western Europe, Great Britain, Greenland, Iceland, Ireland, Cyprus,
Crete, and Israel.
4. The Islamic Circuit-the Arab states, Iran, Turkey, Pakistan,
and the Muslim populated states of Africa.
22
NORTHROP, THE TAMING OF NATIONS 286-87 (1954), contends there are seven major
cultural-legal units in the contemporary world: (1) the Asian solidarity of India,
Ceylon, Burma, Thailand, Indo-China, South Korea, and Japan, "rooted in the basic
philosophical and cultural similarity of non-Aryan Hinduism, Buddhism, Taoism, and
Confucianism"; (2) the Islamic World, rooted in the religious and philosophical faith
and reconstruction of a resurgent Islam; (3) the non-Islamic, non-European African
world, rooted in its lesser known culture; (4) the continental European Union, grounded
in a predominantly Roman Catholic culture with a secular leadership that has passed
through the liberalizing influence of a philosophical thought; (5) the British Common-
wealth, with its predominantly
Protestant-British
empirical
philosophical
traditions
combined with the bond of unity derived through classical education, English law, the
Church of England, and its Royal Family from a Stoic Christian Rome that has passed
through Hooker, the Tudors and Cromwell's versions of the Protestant Reformation;
(6) Pan America, rooted in the liberal constitutionalism of the common law of the
United States on the one hand, and the modern equivalent of Cicero's liberal Stoic
Roman legal universalism on the other hand, as expressed in governments and even
education, under secular leadership; and (7) the Soviet Communist World, comprising
the U.S.S.R., her Eastern European satellites, mainland China and North Korea.
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5. The Southern African Circuit-the African states which are
situated south of the Sahara.
6. The Non-Communist Orient Circuit-India, Japan, Burma,
Ceylon, Taiwan, South Korea, Thailand, Nepal, South Vietnam, Laos,
and Cambodia.
7. The Austral-Oceanic Circuit-Australia, the Philippines, Indonesia, Malaysia, Singapore, and Polynesia.
8. The Latin American Circuit-the Latin American states, including Cuba, Haiti, and the Dominican Republic.
9. The Anglo-American Circuit-Canada,the United States, and
Puerto Rico.
These proposed divisions are subject to modification in the adoption
and implementation of World Habeas Corpus. The states would have
the right to determine the circuit in which they may prefer to be
included; and, with changing political and regional alignments, states
may shift their circuit membership.
Each circuit would be composed of seven judges of whom at least
four would be nationals of states located within the arena over which
the particular circuit court has jurisdiction. Though this may "pack
the court" to favor the decisions of the national governments within
any one arena, such an approach is needed to encourage states to accede
to this legal structure. Moreover, this approach will insure that the
decisions of the courts will reflect the prevailing social and cultural
situation. At least one national from each of the world's predominant
states should sit as a judge in the circuit court having jurisdiction over
that state. Hence, on the U.S.S.R.-Eastern European Circuit Court one
judge must be a national from the Soviet Union, while in the Communist-Orient Circuit Court one judge would be from mainland China,
and in the Anglo-American Circuit Court one judge would be from the
United States. Power realities would be reflected by the presence of a
French and British judge in the Western European Circuit Court and
an Indian and Japanese judge in the Non-Communist Orient Circuit
Court. On the Austral-Oceanic Circuit Court there would be one judge
from the Philippines and one from Australia. The remaining three
judges of each of the circuits would be chosen from states which are
outside of the particular arena.
The judges would be chosen from lists of prominent jurists submitted by the states in each of the circuits. The circuit system would
be capped by a Supreme Court composed of nine justices, which would
19671
WORLD HABEAS
CORPUS
be composed of one justice from each circuit area who must be a
national of a state within the circuit he represents. He would be chosen
by a simple majority vote of the judges composing the circuit tribunal
for that circuit.
Any detained person anywhere or any other person on his behalf
could invoke the jurisdiction of the circuit court. The state detaining
him need not be a member of the International Court of Habeas Corpus
nor need it agree to submit to the jurisdiction of the court. However,
the detaining governmental authorities could choose to intervene before
the tribunal to defend the detention. For a state to intervene, it would
need to bring the detenu before the court. The petition could be brought
only after the exhaustion of all available municipal remedies except
where such action would be obviously futile. The circuit courts could
decide to continue the detention; order the petitioner released at once;
or, if the detention is illegal because of a procedural defect, may, in its
discretion, order the case remanded to the national courts for correction
or retrial. A simple majority would be sufficient to render a decision. A
circuit court decision to release the petitioner would be final and not
subject to appeal. But a holding that the detention is legal and may be
continued would be appealable by right to the Supreme International
Court of Habeas Corpus if three of the circuit court judges dissent.
If two circuit court judges dissent, the Supreme Court could review the
decision at its discretion. The Supreme Court could also exercise discretionary review of circuit court determinations to remand a case to
the state court for determination. A vote by at least six justices would
be needed for a decision to reverse a circuit court determination.
In reaching a decision, the Circuit Courts of Habeas Corpus would
determine if, under all the factual conditions and circumstances within
the particular arena, the continued detention of the petitioner is reasonable as determined by a balancing of interests and values. There would
be a consideration of the rights of the individual as well as the demands
of society within the context of the particular jurisprudential system.
On appeal, the Supreme Court would consider whether, under all the
conditions, factors, and variables existing in the arena of the individual circuit court, the decision of the lower court was so unreasonable
as to require its reversal. There would be a presumption in favor of
the variable factual contexts existing within the particular systems of
public order, the application of the test resulting in different standards
of protection for each arena. In certain circuit arenas the scope of
DE PAUL
[Vol. XVII:3
LAW REVIEW
human rights accorded international protection would be minimal;
but as international conditions stabilized and economic, social, and
political institutions progressed, the decision makers would tend to
broaden the range of individual freedoms.
THE PRIMACY OF INDIVIDUAL
PETITION
The system of World Habeas Corpus envisages the making available
to the petitioner of the free right to counsel, interpreters, and other
means so that he may have access to the circuit courts. The enforcement of judicial decrees has generally not been considered as part
of the judicial process. 23 When a national court enforces a decree, it
does so in its administrative rather than judicial capacity. Where suits
are instituted against a state or one of its autonomous subdivisions,
enforcement is undertaken not by the judicial body which rendered it
but by separate legislative or administrative proceedings. The only
function of the court is to determine the abstract question of liability
or the merits of the particular issue. This principle applies a fortiori to
proceedings between states in international tribunals, both arbitral and
judicial. The enforcement process can neither be undertaken nor
directed by the international tribunal. Its judgments are purely declaratory. The distinguishing feature of an international tribunal is
that it does not have the means for enforcement, while a national court
functions for and in the name of a sovereign entity.
POLITICAL
ENFORCEMENT
The enforcement of decrees of an international tribunal is political.
Under the United Nations Charter, enforcement may be undertaken
by the Security Council.24 Generally, however, coercion to compel involuntary compliance with the decrees of international tribunals is an
exceptional and rarely required remedy.25 The same principles would
apply to the enforcement of decrees involving World Habeas Corpus.
Where a state refuses to adhere to a circuit court or Supreme Court
23 Deutsch, Problems of Enforcement of Decrees of InternationalTribunals, 50 A.B.A.J.
1134 (1964).
24
Article 94(2).
25 Deutsch, supra note 23; Kelsen, Compulsory Adjudication of International Disputes,
37 Am. J. INT'L L. 392, 400 (1944).
1967]
WORLD HABEAS CORPUS
determination, it would be subjected to the censure of public opinion.
There could also be enforcement by the appropriate regional organization, if it is functioning, or by application of sanctions pursuant to the
United Nations Charter. Some states which are committed to world
order and the protection of human rights, or find that such commitment
is in their national self-interest, could exert their diplomatic influence
26
to induce recalcitrant states to comply.
Thus, the system of World Habeas Corpus would reflect the realities
of the prevailing international situation. Sovereignty will be retained
and not impaired even though, under the rule of law, a signatory member becomes a limited subordinate community. As with any other
treaty, each state will have limited its freedom to the extent of its
treaty-contract obligations. Sufficient legal tradition and precedent
have shown that the world has a collective obligation as a self-governing community, as a whole, in relation to maintaining the integrity and
dignity of citizens in its subordinate community areas.
THE SHIELD FOR INDIVIDUAL LIBERTY
The protection of individual rights at the international level is still
in the incipient stages of development as is the situation domestically
in many parts of the world. The proposed system of World Habeas
Corpus reflects this situation by providing minimum protection but
allowing for the maturation of the protection of human rights. The
protection of human rights at the international level will ultimately
depend upon the presence of effective institutions at the national level.
The most effective protection is in a democratically organized state.
But even under a democracy there is the danger of an abuse of powers
by the administration, the executive, or even the parliament. Thus, no
matter how democratic a state may be, it is necessary to provide
effective machinery for the protection of individual rights. The trend
toward socialization, coupled with increasing scientific development,
increases the power of the state machine to intervene in the lives of
the individual.
The growing duty of the state to provide for the needs of the weakest
sections of the population provides additional opportunities for mal26 The approach could be similar to that of the influence exerted by states in the
General Assembly of the United Nations. Kechane, Political Influence in the General
Assembly, INT'L CONCILIATION no. 557 (1966).
DE PAUL LAW REVIEW
[Vol. XVII:3
administration. In nations where democracy is not solidly entrenched,
similar problems exist but to a much greater exent. Governmental
authorities of states which had experienced colonial rule tend to copy
the methods of their former rulers in disregarding the rights of their
citizens by resort to such methods as arbitrary arrest and trial, the
suppression of freedom of expression, and temporary detention." The
tendency of some rulers to elevate such slogans as the "common good"
may lead to the sacrificing of the rights of minorities or of the individual in general.
Sean MacBride, the Secretary-General of the International Commission of Jurists, lists those institutions which are most likely to be
most effective in safeguarding human rights at the national level.2 8
1. A watchful parliament with an effective and courageous opposition.
2. A free press, not government controlled, which will not hesitate to expose
injustice.
3. A constitution which spells out the rights guaranteed and delimits clearly
the powers of the executive, the legislative, and the judiciary.
4. An independent judiciary, not subject to direct or indirect pressure by
the executive or by parliament, charged with the function of upholding the constitution and enforcing its provisions.
5. An "Ombudsman" directly responsible to parliament and/or administrative tribunals with full powers of investigation of complaints of maladministration coupled with an appeal body, such as the French Conseil d'Etat.
MacBride believes that a multi-party state is needed, while others
may argue that human rights can be protected in even a one-party
state.2 9 A constitution is only one element and may be valueless unless
it can be invoked or enforced. Judge Hubert Will of the United States
District Court, Northern District of Illinois, contends that the existence
supra note 19.
28 MacBride, National Institutions, in WORLD VETERANS FEDERATION INSTITUTIONS FOR
THE PROTECTION OF HUMAN RIGHTS 52, 54 (1964) (hereinafter cited as WORLD VETERANS
27 BAYLEY,
FEDERATION). In the Soviet Union, where traditions of freedom are not as well estab-
lished, the tendency has been for an increase in freedom partly attributed through the
influence of the democracies. This has been manifested especially in regard to procedures for the protection of the accused in criminal procedures and the introduction
of the jury system. BERMAN, SOVIET CRIMINAL LAW AND PROCEDURE: TiE RSFSR
CODES, INTRODUCTION AND ANALYSIS (1966).
But the authoritarian tendencies can be
overcome only gradually, as manifested by the trial of Russian authors, Fischer, The
Easy Chair, HARPER'S, 21 (Feb. 1966). Volunteer and Comrade's squads also operate in
the Soviet Union to control tribunals and catch offenders. Savitsky, The Public and the
Law in the U.S.S.R., 51 A.B.A.J. 143 (1965).
29 d'Arboussier, Senegal and Human Rights Institutions, in WORLD VETERANS FEDERATIx, supra note 28, at 62.
1967]
WORLD HABEAS
CORPUS
of effective private voluntary agencies, like the American Civil Liberties
Union, functions as part of the watch-dog process in the protection of
individual rights.80
Though there may be instances where individual rights are arbitrarily denied in those nations where institutions for the protection of human rights are well established, their policies serve as an example for
the rest of the world. As former President Truman observed,
[T]he greatest contribution that the United States has to make to its own
citizens and to the citizens of the world is the heritage of freedom-freedom of
speech, freedom of religion, and freedom of political belief. That heritage is not
only the object of all our protective security measures, it is also the basic source
31
of our true over-all national security.
THE COSMO-INDIVIDUAL
A growing concern for the international protection of human rights
on an international level has developed during the twentieth century.
The League of Nations Mandate Arrangements, the Minorities Treaties
involving the states of Central and Eastern Europe, and the International Labor Organization Conventions contained provisions involving
the protection of individual rights. But in the 1930's, the notion still
prevailed in too many places that human rights was primarily a matter
for domestic concern. The protection of human rights, as such, was
seriously neglected. The seriousness of this situation was apparent
when Hitler came to power in Germany. Ren6 Cassin, the Vice
President of the European Court of Human Rights and member of the
French Constitutional Council, describes the situation:
Complaints were formulated against him in Geneva for the violation of guarantees
laid down in regular treaties, and Hitler replied: "I am master in my own house.
You have no right to interfere with me in my dealings with persons resident in
Germany." Or in other words: "I have powers of life and death over my people.
It is no concern of yours." It was then that the great conflict occurred. Since
there had been no organization of human rights, human beings in Germany were
left to be crushed by the power in the land. Later, it was the men of other nations,
followed by the nations themselves and finally by the whole world that came into
the war. Thus it was that, at the end of the war, it proved to be necessary to
organize the international protection of human rights, simply because the world
32
had gone through a blood bath owing to -the lack of this precaution.
30Will,
The United States and Human Rights Institutions, in WORLD
VETERANS
supra note 28, at 71.
31 A President's Letter to a Lawyer, 52 A.B.A.J. 550, 551 (1966).
32 Cassin, International Institutions, in WORLD VETERANS FEDERATION, supra note 28,
at 19, 20-21.
FEDERATION,
DE PAUL LAW REVIEW
[Vol. XVII:3
With the organization of the United Nations, following the end of
World War II, provisions regarding the protection of human rights
were incorporated into the Charter. The Preamble asserts the task of
the United Nations as reaffirmation of faith "in fundamental human
rights, in the dignity and worth of the human person, in the equal
rights of men and women, and of nations large and small."
Article 1, Paragraph 3, declares that one of the purposes of the
United Nations is to achieve "international cooperation in solving international problems of an economic, social, cultural or humanitarian
character, and in promoting and encouraging respect for human rights
for all without distinction as to race, sex, language and religion." When
this is coupled with Article 56 which asserts that "all members pledge
themselves to take joint and separate action in cooperation with the
organization for the achievement of the purposes set forth in Article
55(a)," some text writers have contended that member states are
obliged to protect the fundamental human rights of their subjects."
But these "fundamental human rights" are undefined because the
delegates at the San Francisco Conference lacked the time in which to
formulate a bill of rights.3 4 Though the Charter, like that of other
human institutions, may be ephemeral and perishable, the experiences
of World War II have established that never again will a world
organization be established without any thought being given to the
35
protection of the human being.
Though Article 2, Paragraph 7, of the Charter precludes the United
Nations from interfering in matters which are "essentially within the
domestic jurisdiction of any state," it has been contended that this
provision cannot be invoked since the member states have obligated
themselves to promote fundamental human rights." Some have con37
tended that intervention does not include studies and resolutions.
Perhaps the sounder approach is that where a situation arises threaten33 Lauterpacht, Human Rights, The Charter of the United Nations and the International Bill of Rights of Man, ch. 11, U.N. Doc. E/CN. 4/89 (1948); GANJI, INTERNATIONAL PROTECTION OF HUMAN RIGHTS, ch. IV (1962); CHAKRAVARTI, HUMAN RIGHTS
AND THE UNITED NATIONS 47-51 (1958). A different interpretation is given by KELSEN,
THE LAW OF THE UNITED NATIONS 29-33 (1950).
34 GANJI, id.
35 Cassin, supra note 32.
36
Cassin, supra note 32.
295 (Waldock ed. 1963);
169 (1950).
37 BRIERLY, LAW OF NATIONS
LAW AND HUMAN RIGHTS
LAUTERPACHT, INTERNATIONAL
1967]
WORLD HABEAS CORPUS
ing world peace, this clause does not apply, as has been the situation
in regard to apartheid in South Africa and racial discrimination in
Rhodesia. Because the denial of human rights creates situations
threatening world peace, Article 56 of the Charter obliges member
states to promote fundamental rights and human freedom.
Beginning with the American and French Revolutions, the basic
theme of world history has been the struggle by oppressed peoples
throughout the world to achieve political, civil, and economic freedom.3 8 The Russian and Chinese Revolutions and the colonial revolutions following World War II are a continuation of this struggle, having
international ramifications threatening world peace; and, since human
rights and fundamental freedoms are so closely identified with them,
they have become a matter of fundamental international concern and
a proper subject for United Nations and international law considera3
tion. 1
In the contemporary world it is virtually impossible to delineate
matters of solely domestic or solely international concern. This has
been reflected in the practice of the United Nations. As Professor
Henkin has reflected:
Governments may continue to claim that how they treat their own inhabitants
is of concern to them alone; increasingly it is a losing claim with little hope
that it can prevail in politics if not in law. The international concern with human
rights has international consequences spilling back into international behavior.
The political organ of the United Nations hardly refrains from discussing any
human rights issues which any member puts on the agenda, whether forced labor
in the Soviet Union or the treatment of Buddhists in Viet Nam, and though
obviously impossible to prove, one may assert, with whatever confidence, that
the existence of the General Assembly, Economic and Social Council and the
Human Rights Commission with the ever present threat of investigation and
criticism help to deter governments from blatant violations. No doubt, too, new
international concern with human rights influences the judgment of international
institutions.
40
The Universal Declaration of Human Rights defines "fundamental
rights and human freedom," setting forth a common standard of action
for their promotion. Though the Declaration may not originally have
been intended to have binding effect, its adoption by the unanimous vote
of all the delegations, its invocation in subsequent General Assembly
38
ARENDT, ON REVOLUTION (1961).
supra note 33.
The United Nations and Human Rights, 19
39 CHAKRAVARTI,
40 Henkin,
INT'L ORG.
504, 506 (1965).
DE PAUL LAW REVIEW
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resolutions, and its incorporation in the constitutions of many states
have made it a part of customary international law. Some commentators
are of the opinion that as a General Assembly resolution, the Declaration may to some of the new states constitute a document having
quasi-legislative status, as would other such resolutions; 4 while other
commentators would regard it, along with all other General Assembly
resolutions, as having no legal force, being only recommendatory.42
The sounder view is that some of the General Assembly resolutions,
particularly those that are to be followed by the adoption of a convention-the two-stage approach, are intended to be expressive of
international law.4 3 The Declaration would fit in this category, having
been intended to precede the adoption of the covenants.
The present status of the Declaration has been succinctly summarized by Richard N. Gardner:
The Universal Declaration has become the yardstick for measuring the progress
of governments and peoples in their long struggle for freedom and dignity. The
United Nations has published it in the native languages of all countries. The
many intergovernmental organizations recognized under the U. N. Charter as
consultants to the United Nations have given it wide publicity through educational and study programs. It helped to stimulate two regional conventions: the
1950 European Convention for the Protection of Human Rights and Fundamental
Freedoms-the first comprehensive regional measure incorporating human rights
into law-and the Draft Inter-American Convention on Human Rights. It influenced the constitutions of at least seven states, including the Federal Republic
of Germany, the peace Treaty with Japan, and the Austrian State Treaty, treaties
relating to at least four African states, and the legislation of many nations around
the world. It has been cited by the International Court of Justice and by courts
in a number of countries. While of no binding legal force itself, it has become a
basic norm in the body of human rights law now being slowly built up within
nations. It has also become the working outline for the development of an
international law of human rights through conventions which do have contractual
force.
44
The United Nations has also sought the protection and promotion
of human rights through the drafting of covenants. Various treaties
have been adopted, beginning with the Genocide Convention which has
been in force since 1951 and commits the parties to prevent and punish
within their territories the destruction of any national, religious, or
41 Castenedo, The Underdeveloped Nations and the Development of InternationalLaw,
15 INT'L ORG. 38 (1961).
42 Locks, The Law in and of the United Nations, 1 INIAN J. INT'L L. 438 (1961).
43 Gross, The United Nations and the Rule of Law, 19 INT'L ORG. 537 (1965).
44 GARDNER, IN PURSUIT OF WoRLD ORDER
241-42 (1964).
1967]
WORLD HABEAS CORPUS
ethnic group. Other United Nations conventions now in force deal with
the rights of refugees, stateless persons, the political rights of women,
the nationality of married women, and slavery.4 5 Also in force are
ILO conventions on forced labor and discrimination in employment
and a UNESCO convention on discrimination in education. In various
stages of completion are other United Nations conventions on racial
discrimination, consent to and minimum age of marriage, reduction of
statelessness, freedom of information, and the international right to
transmit news. The United Nations and the specialized commissions
have also formulated declarations or recommendations by members on
specific subjects prior to their incorporation in conventions, such as the
declaration on racial discrimination. Occasionally declarations have
been adopted without subsequent conventions, such as on the social
and physical well-being of children, where the subject matter was
considered inappropriate for legal treatment.
A special action program for the promotion of human rights has been
underway involving a system of periodic human rights reporting,
calling on governments to review progress and problems in their
countries with the Secretary General receiving and summarizing these
reports; the conducting of global research by the Commission on
Human Rights, the sub-Commission on Prevention of Discrimination
and the Protection of Minorities, and other United Nations bodies
which have studied particular rights listed in the Declaration, examining how they are observed in member states and suggesting areas for
improvement; and the conducting of a program of advisory services
involving the organizing by the Secretariat of regional seminars on
human rights, the awarding of fellowships and scholarships, and the
providing of the services of experts to member states.
THERE CAN BE NO VACUUM
IN
HUMAN
RIGHTS
But though these rights are aimed at protecting the individual, the
means for their enforcement is lacking. The individual lacks the means
for asserting his rights. The notion still persists, though outmoded, that
the individual lacks standing to bring an action before an international
tribunal, being only an object and not a subject of international law. As
long as the individual remains an object, he has the status of a slave.
Only by permitting him to assert his rights can the "ought's," or
45 Id. at 242, et seq.
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[Vol. XVII:3
categorical imperatives of international law regarding the protection
of human rights, become transformed into the "is's."4 6
A stride toward the conferring of standing on the individual was
taken with the adoption of the European Convention on Human Rights
which established the European Commission on Human Rights and a
European Court of Human Rights. An individual who has been denied
his rights may, after the exhaustion of all domestic remedies, make
application to the Commission, which will examine the matter and seek
to resolve the issue by consultation. It may issue a report and then
refer the matter to the Court, which may also hear matters referred to
it by a Contracting Party which had filed a complaint with the Commission or by a Contracting Party against which an application has
been filed. Under the Convention an individual may make application
to the Commission by presenting the case in person or by inducing a
government to act on his behalf. Though an individual may not present
his case before the Court, he is permitted to communicate his views.4"
The system of World Habeas Corpus would represent an important
advance in the development of international law by providing the individual with a means for seeking redress for the denial of his rights.
It would reflect the fact that international law has expanded horizontally, in that it now encompasses the non-Western nations, and
vertically, in that it applies to the individual.4"
THE OBSOLESCENCE OF "SOVEREIGNTY"
A stumbling block to the granting of individual rights in international
law is the outmoded commitment to sovereignty. Many of the newer
states, having recently attained their independence, are jealous of outside interference and seek to uphold their "sovereignty." However, the
46Tucker, Has the Individual Become the Subject of International Law?, 34 U. CTN.
L. REV. 341 (1965). The refusal of the International Court of Justice to decide the
matter of the status of Southwest Africa is a dramatic illustration of the limitations
of standing. The inhabitants of the territory, as individuals, lacked the capacity to sue
and Liberia as a former member of the League of Nations could not bring suit to
determine rights under the mandate arrangement. Wall Street Journal, July 19, 1966.
47 McNair, The Expansion of International Law, Hebrew University, Lionel Cohen
Lectures, 1962; Schwelb, The Protection of the Right of Property of Nationals under
the First Protocol to the European Convention on Human Rights, 13 Am. J. COMP. LAW
518 (1964) ; Mashaw, Federal Issues in and about the Jurisdiction of the Court of
Justice of the European Communities, 40 TuL. L. REv. 21 (1965).
48 FRIEDMAN, THE CHANGING STRUCTURE OF INTERNATIONAL LAW (1965).
1967]
WORLD HABEAS
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interdependence of states makes notions of absolute sovereignty unworkable. Though the Soviet Union has proclaimed the importance of
sovereignty in international law with the principle of equality of states
as enabling international cooperation, it repudiates "absolute sovereignty." It opposes arbitrary or forcible restrictions placed on one
state by another, but acknowledges that states must limit their sovereignty through the making of treaties and the incurring of international
obligations.4 9
The present international system is not relevant to today's world. It
is a world in which men are so close that only a few minutes' communication, orbiting, or shooting times separates them. It is a world
which is only a tiny footstool for the beginning of man's exploration
of the universe.1° Each of the seemingly sovereign political entities is
mutually dependent upon each other. The thermonuclear threat has
made nations militarily dependent on one another.
In effect, what has occurred is a mass exchange of hostages, leaving the population of the world's major cities subject to sudden slaughter by hostile governments. This is interdependence on a new plane of intensity: to an unbelievable
and gruesome degree we now depend on each other's leaders to be rational, to be
predictable, to be sane. One has only to imagine for a moment what the situation
would be like today if Hitler and the Nazi Party were in charge of a military
force like that of the United States or the U.S.S.R. to appreciate how desperately
we depend on each other's leaders to be relatively free of paranoia, and endowed
with humane qualities. 51
In addition to military interdependence, there is economic and geographical interdependence. The centrally planned economies have come
to rely more on certain aspects of private economy, while the states
based on a free market have resorted to some planning.
As long as small distances could keep individuals or families in
ignorance of the existence of others, man could feel sovereign in his
limited lebensraum.5 2 When individuals grouped themselves into tribes,
personal sovereignty was transferred to the group. This giving up of
individual sovereignty may have resulted in a neurosis. The more our
shrinking world demands integration, wholeness, and cooperation, the
49 ACADEMY OF SCIENCES OF THE
U.S.S.R.
INSTITUTE OF LAW, INTERNATIONAL LAW 89,
et seq. (Moscow, n.d.).
50Benoit, Interdependence on a Small Planet, 1 CoLUM. J. WORLD BusINESS (1966),
reprinted in 112 CONG. RFec. 9014 (daily ed. May 2, 1966).
51 Id.
52 Sicher, Neurotic Sovereignty, 14 J. INDIVDUAL PSYCH. 139 (1958).
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greater the threat to the neurotic individual. Similar conflicts may occur
as the state, a smaller unit, must integrate with the whole. The tribe,
in integrating with the nation to form larger units, probably experienced
similar conflicts. The fears with regard to integration could be alleviated if the neurotic ideal of autonomy or self-centeredness was replaced by a task-oriented attitude; a different motivation for accomplishment.
Men, in developing an attachment to nations, are inculcated with a
sense of attachment to the unit, though some of the global areas have
yet to develop this sense of national consciousness. Today, there must
be a sense of involvement in a larger unit. In the case of prior civilizations, integration had reached the point where a universal order was
established through the establishment of an empire; but, in the contemporary world, the notion of an empire is unacceptable. Therefore,
universal integration must develop through various tasks of international cooperation.53
International law commentators have recognized that notions of
sovereignty must be accommodated to changing situations. George
Schwarzenberger has noted:
Legal sovereignty is essentially a negative concept. It indicates the residue of
rights and discretions which are not limited by international obligations ....
Inside each of the world camps, the sovereignty of all but the leading powers
54
has become increasingly relative.
Professor Friedman has concluded:
While the national state continues to be the overwhelming important form of
political organization in international society . . . the national state, and its
symbol, national sovereignty, are becoming increasingly inadequate to meet the
needs of our time. The outward triumph of nationalism . . . contrasts with the
stark realities . . . which make the national state an anachronism. 55
53 Aron, The Anarchical Order of Power, 95
THE
DAEDALUS
479 (1966).
(1965).
55 FRIEDMAN, supra note 48. A similar view is expressed by O'Connell, The Role of
54 SCHWARZENBEROER,
INDUCTIVE APPROACH TO INTERNATIONAL LAW
International Law, 95 DAEDALuS 627, 636 (1966): "The sovereign state is an intellectual
artifact; its character, its form, and its qualities derived from a theoretical exposition of
political organization which is nothing if not Western, and has its roots in the Age of
Reason as much as has international law. New states can hardly claim the privileges
and faculties of states and yet repudiate the system from which these derive; yet this
is precisely what the argument involves. It overlooks that a state, when it commences to
exist as a state, does so in a structural context which gains its form from law, just as a
child when born into a society becomes subjected to it by virtue of the order of being in
which it is integrated."
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The breakdown of sovereignty reflects the quest of man to associate
with others and to expand his horizons as evidenced by programs of
inter-nation educational exchange and international commerce. The
increasing contacts between men serve to create common values, including the protection of human rights-a matter which becomes
internationally more significant as international contacts continue to
increase.
It is in this context that World Habeas Corpus may function as a
ligament for world order. Today, despite the pious platitudes with
regard to the international protection of human rights, individual
liberties are still being trampled upon. A manifestation of this is the
fact that there are today over eleven million refugees who have been
uprooted from their homes and forced to live elsewhere.56 Tribal conflicts in Africa, the war in Viet Nam, and conflicts elsewhere have
served to increase the total. 7
In South Africa, the imposition of the policy of apartheid has
resulted in the arbitrary detention of countless individuals and the
circumventing of due process."' In the Portugese African states of
Angola, Mozambique and Portugese Guinea, there has been a continuing deterioration of individual rights. 9 In Iran, a trial of individuals
accused of participating in a plot to assassinate the Shah was held
before a military tribunal, a questionable procedure under the Iranian
Constitution; and there was denial of counsel during the investigation
of the case. 60 The rape and butchery of Tibet by Red China is shocking
and sickening.
In Latin America the Inter-American Commission on Human Rights,
56World Refugee Report (Annual Survey Issue 1966-67), U.S. Committee for
Refugees, Inc., 112 CONG. REc. 26957 (daily ed. Oct. 20, 1966). Statistics tabulated on
26957-58.
57 The Cyprus crisis led the Turkish government to deport six-thousand persons holding
Greek passports who were of the Orthodox faith, along with thirty-four Jews and
Catholics. Chicago Sun-Times, Sept. 23, 1965, p. 85. In Rumania, individuals are permitted
to leave upon payment of a ransom. Woodstone, People for Sale, THIS WEEK,
Oct. 10, 1965.
58 VAN DEN BERGHE, SOUTH AFRICA, A STUDY IN CONFLICT (1966); LOGAN, SOUTH
AFRICA: CRISIS FOR THE WEST (1964); Baker, Human Rights in South Africa, 11 How.
L.J. 621 (1965); Testimony of the Rev. Kenneth N. Carstens at the Hearings of the
African Sub-Committee of the Congressional Committee on Foreign Affairs, printed in
112 CoNG. REC. 6905 (daily ed. April 4, 1966).
59 INTERNATIONAL LEAGUE FOR THE RIGHTS OF MAN, THE RIGHTS
WRONGS OF STATES,
A
SU'hMMARY OF THE ACTIVITIES
60 BULLETIN OF THE INTERNATIONAL COMMISSION
OF MAN AND THE
1964-65 at 4 (1965).
OF JURISTS, June, 1966, at 19, no. 26.
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an agency of the Organization of American States, found after conducting hearings that there have been flagrant violations of human
rights in Cuba. 61 International attention has been focused on the plight
of more than thirty journalists languishing in Cuban jails. 2 Cuban
prisons have been described as approaching the horrors of the Nazi
concentration camps. 3 Another Latin American nation noted for the
trampling of human rights is Haiti. The Inter-Nation Commission of
Jurists has reported that there are daily instances of denial of indi6 4
vidual rights.
Behind the Iron Curtain, though now more porous, instances of the
violation of individual rights continue. In the Soviet Union, two
American tourists accused of black market activities were confined to a
jail cell and subjected to two months of interrogation prior to their
trial.6 5 Another tourist who had mistakenly crossed the frontier was
sentenced to serve eighteen months in prison and died under mysterious
circumstances while in the custody of Soviet prison authorities.66 In
East Germany, American citizens in their twenties have been sentenced
to long prison terms for assisting people to escape to the West. 7 A
former Czechoslovakian national who is now an American citizen,
returned to Czechoslovakia to visit relatives and was summarily imprisoned by the secret police, subjected to continued questioning and
was then expelled.68 The United States ambassador was denied prompt
access to a travel agent charged with espionage by Czechoslovakian
authorities. 69
The Chinese Communist regime has also trampled upon human
rights. In addition to rape and degradation, a form of genocide
is practiced in Tibet where Tibetans are forbidden to marry one
61
Los Angeles Times, Oct. 29, 1966, at 8.
62 Chicago Tribune, June 10, 1966.
63 Chicago Tribune, Sept. 14, 1966; Chicago Daily News, Sept. 16, 1966.
64 25 BULLETIN OF THE INTERNATIONAL
COMrMISSION OF JURIsTs,
March, 1966, at 1.
65A personal account of the experiences of one of them is presented in Chicago
Tribune, Dec. 25, 1965, p. 5.
66National Security Council, Washington Report, May 23, 1966, reprinted in 112
CON(. REc. 11467 (daily ed. June 1, 1966).
67 New York Times, July 1, 1966.
68 Chicago Tribune, Dec. 24, 1964.
69 Chicago Sun-Times, Nov. 20, 1966.
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another.7" Reports occasionally appear of nationals from other states
who have been imprisoned for considerable periods of time. A Jehovah
Witness missionary reported he was subjected to a mock trial, placed
in solitary confinement, and imprisoned for seven years on a spy
charge."
But the denial of human rights can also occur in states where principles of due process are well established. Instances of arbitrary police
action have also occurred in the United States. One group of American
citizens, the Indian, is not accorded full rights.7 2 During World War
II, the Japanese-Americans were flung into camps and "processed"
over a number of years.
World Habeas Corpus could be used in these and other instances to
protect the rights of the individual. A tourist behind the Iron Curtain
who is summarily detained could invoke the Writ of World Habeas
Corpus to obtain his release, or the American ambassador could invoke
the writ on his behalf. World Habeas Corpus would constitute an
effective remedy to limit the activities of police states. A tribunal dedicated to the principles of human rights could not countenance the
activities of a police state.
The legal system of World Habeas Corpus may be regarded as a
check aganst arbitrary governmental action. It is an effective means
for implementing the substantive international provisions as to the
protection of human rights. Proposals have been made as to means
for protection of individual rights which are analogous to the system
of World Habeas Corpus. Ambassador Arthur Goldberg,73 Sir Muhammed Zafrulla Khan, 74 and Chief Justice Warren 7' have urged the
establishment of regional tribunals of world courts; while the Ceylon
section of the International Commission of Jurists has recommended
the establishment of an "Ombudsman" in the Asian and Pacific
70
Chicago Tribune, Nov. 7, 1966.
71
Los Angeles Times, Oct. 18, 1965, p. 14.
72 Comment, The Constitutional Rights of the American Tribal Indian, 57 VA. L. REv.
121 (1965).
73 Goldberg, The Need for a World Court of Human Rights, 11 How. L.
(1963).
REV.
621
74 Khan, World Peace and Human Rights, in WORLD VETERANS FEDERATION, INSTITUTIONS FOR THE PROTECTION OF
HUtAN
RIGHTS
75 Chicago Sun-Times, May 30, 1966.
9 (1964).
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region.7 6 The United Nations has also considered the establishment of
a United Nations High Commissioner for Human Rights.
These proposals represent a growing movement to provide the individual with the means to assert his recognized rights under international law. To say that the individual has rights without providing
him with a remedy is meaningless. The most effective remedy is the
Writ of World Habeas Corpus. The suggestion for an "Ombudsman"
should also be given serious consideration as a supplement to World
77
Habeas Corpus, as affecting administrative determinations. Implicit
in World Habeas Corpus is the recognition of the existence of an internationalcommunity.
Man as man transcends political divisions and participates in community by
virtue of human, not class, coexistence. The "urge" to law follows as a matter
of course. Law then has its starting point in man, and this is true no less of
78
international law than it is of the law of the state.
World Habeas Corpus can be supported by either natural law
assumptions or the norms of positive law. Adherents to both schools of
law are committed to the principles of individual rights and the recognition of the existence of an international community.
The presence of a police state and the arbitrary denial of individual
rights, or the existence of a state without law, today constitutes a
threat to world peace. Thus, the racial policies of South Africa and
Rhodesia have contributed to an increase in international tensions in
Africa. Nasser's police state regime in the Middle East has contributed
to the intensification of conflicts in that area. In Latin America peace
is threatened by the police states in Haiti and Cuba. The Dominican
crisis was partly an outgrowth of the brutalities of the Trujillo regime.
The dictatorial policies of Diem contributed to the present bloody
conflict in Viet Nam. Former Vice President Nixon has acknowledged
that the key to resolving this conflict lies in the establishment of evenhanded justice.7 9
76 26 BULLETIN OF THE INTERNATIONAL COIMMISSIONr OF JURISTS, June, 1966,
at 1.
77 The Ombudsman is an institution peculiar to Swedish jurisprudence as a check on
administrative actions and has spread to Finland, Denmark, Norway, and New Zealand.
Gellhorn, The Swedish Justitieombudsman, 75 YALE L.J. 1 (1965), reprinted in 112 CoNG.
REc. 1407 (daily ed. Jan. 29, 1966). The idea has been considered in the United States.
Christian Science Monitor, Feb. 28, 1966. The aim is to protect the fights of citizens
against administrators. A similar type of institution exists in Poland. Gellhorn, Protecting
Citizens Against Administrators In Poland, 65 CoLum. L. REv. 1133 (1965).
78 O'Connell, The Role of Internatonal Law, 95 DAEDALUS 627, 641 (1966).
79 New York Times, Sept. 15, 1966.
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Thus, World Habeas Corpus, as an obvious antidote to the police
state, is a step in the direction of world peace. By promoting world
law it also makes a contribution, a first step, toward world peace.
In a world where peace is based on the balance of terror and proposals have been advanced for alternative approaches,80 the role of law
cannot be minimized. 8 ' As a step in the promotion of world law,
World Habeas Corpus contributes to world peace through the further
evolution of the world community. As the late President Kennedy
stated:
Let us focus instead on a more practical, more attainable peace, based not
on a sudden revolution in human nature but on a gradual evolution in human
institutions-on a series of concrete actions and effective agreements which are
in the interest of all concerned . . . For peace is a process, a way of solving
problems .... 82
CONCLUSION
Although the United States is indeed a world power, feared and
respected, on close examination one finds that internally and externally
the power never reaches its potential because of the lack of a unifying
overall human rights world public purpose.
Members of the United Nations, indeed the founding fathers of
1945, have always conceived of themselves as leading the world to
new and higher goals. Theirs was to be a fortified experiment that
would benefit all mankind. With overarching vision, they professionally
assumed the solemn obligations over the lives and fortunes of ordinary
80 HERZOG, THE WAR-PEACE ESTABLISHMINT (1965).
81 A proposal has been made for the establishment of a laboratory for a project justitia
as a breakthrough in world law encompassing the establishment of a scientific law
laboratory for coordination of the existing fragmentary activities to research and
formulate a workable system of law and courts to displace war in the settlement of
international disputes; the creation of a cabinet level Department of Peace to "balance
the scales" of the War Department; and the calling of an international conference on
"Conservation of Humankind" to bring together government leaders on the ministerial
and cabinet level who need to understand, and have the power to act on, the world's
conservation need for World Peace Through Law. Springer, World Peace Through LawNeeded: A Laboratory for Project Justitia, 112 CONG. REC. A5691 (daily ed. November
10, 1966.) One problem in the development of law is the unavailability of law books and
the reporting of decisions in the developing countries. Rhyne, Law for All, 112 CONG.
REc. 14383 (daily ed. July 11, 1966). A means for alleviating this problem may be the
development of computer information retrieval systems. Rhyne, Law Research by Computer, WORLD PEACE THROUGH LAW CENTER, (Pamphlet Series No. 4 1966).
82 GARDNER, IN PURSUIT OF WORLD ORDER 2 (1965).
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[Vol. XVII:3
people in their trust. Privileges and restraints contrary to the libertarian and democratic axioms of a free-choice world were to be exposed
and corrected. Political diversities were to be recognized within the
scheme of the organization. Elite control was to find its common denominator in the sanctity and integrity of individual human dignity. The
experience and precedent of the democratic process was to be made
available for meaningful application. It was to exercise a restraining
influence against the kind of aggressive messianism that nationsemerging or emerged-seeing themselves as saviors, frequently pursue.
The Human Rights articles of the Charter, the Universal Declaration of Human Rights, the seminars, and conventions since 1945, have
put a terrible burden of frustration on the Society of the United
Nations. The people of the world-the more than one hundred million
exiled, tortured, and exterminated since 1917-those in concentration
or labor camps, prisons, and dungeons during this current era of outer
space explorations-those in the future who are doomed to hopeless
imprisonment, dungeons, inhuman torture, and barbaric cruelty-cry
out for a world collective legal remedy that will guarantee individual
security and summarily remedy arbitrary or wrongful detention or
imprisonment.
It is indeed a grim commentary that the human right of individual
liberty is enmeshed in disquieting chaos. Lucid, precise, and evocative
exposition is regrettably absent. There have been awkward attempts at
bravura, here and there, in the midst of historicist cliches, pat phrases,
and academic diplomatic jargon. Instead of embarking on a singlemindedness born of true concern for solemn signatory pledges, the 122
members (as of June, 1967) have slackly allowed the United Nations
to become a convenient vehicle for an apocalyptic world.
The importance of a unified world view, implemented by a concrete
and realistic rule of law, still remains the issue. The United Nations
has yet to get down to business to overcome the cumulative frustration
in the area of the human rights of individual security.
World Habeas Corpus recognizes the extraordinarily complex political systems that constantly challenge the imagination. Ruthless power
elites still occupy the institutional command posts of political, executive, and military establishments. Infinite mosaics of countervailing
forces offset each other, balance each other, veto each other, to the
point where there is no identifiable rulership at all. Political fortunes
19671
WORLD HABEAS
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have varying internal and external postures. Political power structures,
orthodoxies, organizational forms, strategies and tactics still react to
the ever-changing exigencies of the moment.
World Habeas Corpus offers a monolithic rule of law that centralizes
political fragmentation without a concentration of power; that concedes but does not impair national sovereignty. It facilitates the
genesis of the exertion of power by configurating and implementing the
signatory pledges to respect the dignity of the individual, the cosmosubject of the world. It repudiates the clich6 that political power
grows out of the barrel of a gun.
The basic premise underlying the concrete cogency of World Habeas
Corpus constitutes an informed and reasonable man's approach to
guaranteeing individual security in world affairs and suggests a quick
understanding of the United Nation's global role. World Habeas
Corpus is dedicated to peace while recognizing the manifold dangers
of free world apathy despite deep involvement in the jungle of intrigue
and in the fighting of conflicting political ideals and objectives.
The concept of World Habeas Corpus is timely because of its profound awareness of modem political theory that implements the motive
of man-his needs-his tendencies-his natural rights in sharp contrast
to the classical theory that begins usually from the nature of the state;
that defines the individual as a subject thereof. In combating arbitrary
detention, it challenges unbridled authority, alleged political legitimacy,
and ruthless power. The proposed World Habeas Corpus TreatyStatute meets the problems of international court jurisdiction, composition, and procedure. Trails have been blazed by many expert
opinions and reports, and the time has arrived to bring all these discussions to a positive fruition.8 3 We must establish an era where nations
84
as well as individuals are subjects under law.
83
Sohn, Proposals for the Establishment of a System of International Tribunals, INT'L
TRADE ARBITRATION 16 (1958).
84 Brownell, TimE, Aug. 5, 1957, at 8. See also Brownell, Law in the Settlement of
Disputes between Nations, 31 CONN. B.J. 346-56 (1957).